THE so-called Shield bill, which was recently introduced in both houses of Congress in response to the WikiLeaks disclosures, would amend the Espionage Act of 1917 to make it a crime for any person knowingly and willfully to disseminate, “in any manner prejudicial to the safety or interest of the United States,” any classified information “concerning the human intelligence activities of the United States.”
Although this proposed law may be constitutional as applied to government employees who unlawfully leak such material to people who are unauthorized to receive it, it would plainly violate the First Amendment to pun-ish anyone who might publish or otherwise circulate the information after it has been leaked. At the very least, the act must be expressly limited to situations in which the spread of the classified information poses a clear and present danger of grave harm to the nation.
The clear and present danger standard has been a central element of our First Amendment jurisprudence ever since Justice Oliver Wendell Holmes Jr.’s 1919 opinion in Schenk v. United States. In the 90 years since, the precise meaning of “clear and present danger” has evolved, but the animating principle was stated brilliantly by Justice Louis D. Brandeis in his 1927 concurring opinion in Whitney v. California. The founders “did not exalt order at the cost of liberty,” wrote Brandeis; on the contrary, they understood that “only an emergency can justify repression. Such must be the rule if authority is to be reconciled with freedom. Such ... is the command of the Constitution. It is, therefore, always open to Americans to challenge a law abridging free speech and assembly by showing that there was no emergency justifying it.”
On the other hand, the First Amendment does not compel government transparency. It leaves the government extraordinary autonomy to protect its own secrets. It does not accord anyone the right to have the government disclose information about its actions or policies, and it cedes to the government considerable authority to restrict the speech of its own employees. What it does not do, however, is allow the government to suppress the free speech of other Citizens when it has failed to keep its own secrets.